Employers' liability and doing what is 'reasonable'

In my last article "Accidents at work: suing the boss", I highlighted the growing trend for accident victims to sue those who are responsible for the causes of their accidents. When accidents and ill-health occur at work, this often means an employee...

There may also be, of course, a criminal prosecution arising from an incident at work, but that is a separate issue. It is civil law that is used to making claims for compensation for injuries and ill-health.

In these cases, one of the key questions that the courts have to ask themselves is: Did the employer do what was 'reasonable' in the circumstances, or did they fall significantly short in some way? The stakes can be very high, with awards being made of many thousands of liri against employers not uncommon.

It is therefore essential that employers understand what is expected of them, and how they can demonstrate that they have acted reasonably. This is to be the topic of a conference being jointly hosted by the Institute of Health and Safety and the Foundation for Human Resources Development on October 9.

Searching for standards

In most walks of life there are accepted norms and standards that we consciously and unconsciously apply. Some behaviours are considered acceptable to the majority of people, and some are not. In a work environment, these norms and standards have been codified in a number of ways, not least through the development of legal standards. Thus we have laws related, for example, to employment contracts, discriminatory practices and so on.

Over the last few years a great deal of (criminal) law has been introduced in the area of health and safety at work. These laws set out the minimum standards that must be achieved in particular aspects of health and safety, and they are therefore collectively one of the yardsticks that the civil courts can use when trying to assess an employer's performance.

Employers might therefore feel that studying the required standards and applying them in their workplaces is a relatively simple way to approach legal compliance and 'reasonability'. Unfortunately however, things are not that easy. For example, take section 6(2g) of the Occupational Health and Safety Act 2000, which requires employers to adapt the work to the worker, taking account of the design of workplaces, work equipment, and working methods.

The emphasis is clearly on the employer's duty to act, but there is little or no guidance on what to do in a practical sense. This particular legal duty throws up such issues as consultation with employees, ergonomics, maintenance, and risk assessment, but what will be considered adequate and appropriate in each of these areas in order to comply with section 6(2g) and to demonstrate that one has acted 'reasonably'?

Codes of Practice and guidance

The problem of interpreting what the law requires is one that has long been recognised both by lawmakers and by those charged with enforcing the law - in Malta, the Occupational Health and Safety Authority (OHSA). Some guidance on particular issues, such as the management of construction sites, has therefore been produced to help employers understand what is required.

The problem is that the guidance itself is sometimes rather vague and difficult to apply in an individual employer's own circumstances. It is nevertheless an important source of information which the courts themselves sometimes use to make judgments about employers' performance.

In the UK, for example, the existence of an Approved Code of Practice in a particular area of health and safety has the effect of reversing the normal burden of proof in criminal prosecutions in the English courts. In cases where the key issue is whether or not an employer did what was 'reasonably practicable', and where a relevant Approved Code of Practice exists, the defendant is held to be guilty of an offence unless he can demonstrate that he "equalled, or exceeded the standard described".

In other words, the defendant is assumed to be guilty until and unless he can prove his innocence. This approach is not one that is taken in Malta, but 'official' guidance, such as a Code of Practice published by government sources, is extremely persuasive in a court of law, and employers would do well to take heed of any such guidance that is relevant to their particular undertaking.

In some areas of work, we in Malta have yet to produce guidance, so in trying to establish a workable standard, it makes sense to examine the approach taken in fellow EU states. We are all subject to the same standards that are imposed by European directives and transposed into national law, and so guidance on the implementation of these standards may have value, whatever the source within the EU.

The UK, for example, has one of the longest established systems of health and safety law, enforcement and guidance, of any of the member states, with good practice having been developed over many years. It may often therefore be appropriate for the courts and for employers in jurisdictions that are not so well developed, to follow such guidance when trying to identify appropriate standards.

Practical advice is therefore available if we look carefully enough for it. Machinery guarding, safe use of electricity, and working at heights are just a few examples of subjects that are covered for example by guidance from the UK's Health and Safety Executive at www.hse.gov.uk. Malta, of course, has its own laws and supporting systems, but where standards are unclear or have not yet been developed, it makes sense to look to proven, internationally accepted sources for information.

In any case, the important thing for an employer is to be able to show that he has followed a credible, validated methodology in controlling workplace risks.

Other sources of information

Sometimes industry bodies, such as the Federation of Motor Manufacturers, produce guidance and information to support their particular industry. Although not carrying quite the weight and authority of government-sponsored sources, this type of guidance can be very useful when trying to judge what is an acceptable standard or what is a 'reasonable' approach to a particular health and safety issue.

It is not difficult to see how an employer might struggle to argue against following industry-recommended practice, particularly in a case where this has led to an accident! It is therefore worth researching these industry bodies for information related to our particular type of business.

Trade unions and organisations set up to improve employees' conditions of work, such as the International Labour Organisation (ILO), can also be mines of information. They have worked for many years examining health and safety issues and the ways in which work can affect employees' safety and well-being, and have produced excellent guidance on various safe working methods.

Manual handling, for example, is just one of the subjects that has been addressed, and for which practical guidance has been developed. In some ways these organisations might be considered the counterpart to industry bodies, which are set up to support employers, and so they must be considered to be authoritative sources.

Using these sources to identify appropriate standards that we can use to compare our performance and to develop risk controls is part of the process by which we can demonstrate that we are doing what is 'reasonable'. Access to these sources is therefore essential for any employer wishing to avoid or at least minimise civil liability.

Management systems and standards

Another way of showing that we are doing what is 'reasonable' is to employ a recognised system of management for health and safety. This is something that is already commonplace in the field of quality, where many organisations seek ISO accreditation for their quality management systems.

More recently some are also having their environmental management systems endorsed by ISO. This is a way of bringing consistency to these areas of their operations, and demonstrating to all interested parties that they have reached a certain level of efficiency in their management systems that has been externally verified.

This can provide an enormous boost to their credibility and engender confidence in their abilities. The same is true for health and safety. The ability to physically show a court or an enforcement officer for example, the component parts of an accredited, working, health and safety management system, together with evidence of its effectiveness, is a powerful way of showing that one has done what is 'reasonable'. It is also a useful marketing tool that can be used to good advantage when negotiating with clients and suppliers.

Common sense

Above all, the courts try to apply a common sense approach to the interpretation of what the law can 'reasonably' expect of employers. After an accident, for example, a number of straightforward questions are normally asked. Was the danger known? Was the incident reasonably foreseeable? Were the means to reduce the risks available? Is this a responsible employer?

These are all examples of questions that any 'reasonable' person might ask. The work that we do, no matter what it is, carries some degree of risk. Some occupations could be said to carry higher risks than others; the mistake that some employers make however, is to blithely accept this without taking steps to minimise the dangers. The greater the risks, - the greater the effort that is required of employers to reduce them! 'Reasonability' can therefore be said to be dependent on this simple equation.

Chris Hudson, MA, BA (Hons), FIOSH, AIEMA, is director of training and consultancy at the Institute of Health and Safety. Comments on this article and enquiries about the forthcoming conference may be sent to him at chudson@ihs.com.mt.